June 19, 2009

During the course of the ["Dateline"] interview, [James] Mason said it was impossible for Serrano to have committed the murders, since it would have required his client to fly from Orlando to Atlanta, exit one of the busiest airports in the world, and arrive at a hotel five miles away in less than a half hour.

"I challenge anybody to show me, I'll pay them a million dollars if they can do it," said Mason on the show....

Dustin Kolodziej, an enterprising law student at South Texas College of Law, decided to take up Mason's challenge. In December, 2007, Kolodziej retraced Serrano's alleged route and made a video recording of the travel. He made the Orlando-to-Atlanta-hotel trip in under 28 minutes.

... Was Mason's "Dateline" exclamation a rhetorical flurry or an actual offer that created an implied oral contract when Kolodziej accepted?

43 comments:

I presumed that the acceptance had to be recognizeable to the offeror in advance of the execution of the agreed terms, else how could the offeror be compensated for potential non-performance of a contract that the offeror was unaware of.

How does Mason's comments differ from those of someone who says "I'll pay $50 to the person who finds my wallet."?

in my mind, the reason this in not an example of unilateral contract, which is what your wallet example typifies, is because the non-performance of the contract is valuable to the offeror.

the fact that 100 people attempted to find my wallet and failed is valueless to me.

the fact that 100 people tried and failed to make the trip in under 28 minutes is extremely valuable to me as the defense attorney. Therefore, I wanted the contract to be bilateral. I did not make a unilateral contract offer.

Well, you go on national TV as a very wealthy trial lawyer and offer a national audience a huge reward for finding something out - that a client's trip was possible, that you find a copy of Obama's "secret Kenyan birth certificate", proof that a billionaire his client is divorcing has a child by a movie actress...and someone actually produces it? My feeling is the rich lawyer deliberately ADVERTISED, in full knowledge of the law, a verbal contractual guarantee. That he best make good on - if not in lawsuit - at least in knowledge that he will be hounded the rest of his career by an aggrieved law student who will do his best to inform any client or court that the guy's word is crap. That he is a welsher.

=====================But as far as the case goes, it took authorities 3 years to crack his alibi, but threw lots of resources at it because it was a quadruple murder and Serrano had all the motive in the world. But rack it they did - enough to satisfy judge, jury, and appeals that he was guilty and well-deserving of the "bye-bye! injections."

Even so, authorities were still unable to disprove his alibi, and in 2000, he left the country for Ecuador.

It wasn't until 2001 that Phil Dosso inadvertently told Ray that his former partner had an estranged son from a previous marriage named Juan Agacio.

Ray, who had fruitlessly searched numerous passenger manifests for any link to Serrano, pored through the same records in search of Juan Agacio. He found him on a flight from Atlanta to Orlando, which arrived at about 3 p.m. on the day of the killings.

In another stroke of luck, authorities allegedly found a parking ticket stub from the Orlando airport, dated Dec. 3, 1997, which allegedly bore Serrano's fingerprint.

Finally, Serrano's nephew, Alvaro Penaherrera, came forward and told police that he had rented a car for his uncle Dec. 3, 1997. He also told police that Serrano visited him and his brother that day.

With the new evidence placing Serrano in Florida the day of the crime, authorities were able to obtain a grand jury indictment in 2001..

The best place to begin is to define what a contract is: namely a legally-enforceable agreement.

In order to determine whether there is a contract at all, we must first determine what sort of contract it would be.

It cannot be a bilateral contract, because Kolodziej never made words of acceptance to Mason. Further, because Mason framed his offer in the language of a "reward," it looks very much like a unilateral offer.

A unilateral offer is one for which the only way to accept it is by completing performance. In this example, the only way to accept Mason's offer would be to actually demonstrate what Mr. Mason claims to be impossible. Also, if one took Mason's offer seriously, he was probably only offering to pay a single reward to the first person to demonstrate such a thing (so the reward was limited in scope).

A more common example of a unilateral offer would be putting up a poster that says "lost dog: Fluffy, $500 reward." The only way to accept the offer is to bring Fluffy to the owners.

On the facts given, it is clear that K did perform what Mason asked, which, if Mason's asking was a unilateral offer, meant that K both accepted it and performed at the same time.

Mason's best defense is, as was pointed out earlier, Leonard v. Pepsico, in which Pepsi put out a commercial stating that if a certain number of Pepsi points were obtained, a the reward would be a Harrier fighter jet. Some guy sent Pepsi a check for $700k, which would have purchased enough Pepsi Points (you could buy PP from Pepsi directly, or obtain points by drinking the swill), and said he wanted a Harrier. Pepsi refused to cash the check and told him it was only joking. A ridiculous, and mostly frivolous, lawsuit ensued. Because Pepsi's "offer" was humorous, and a reasonable person would have understood as much, it was not an offer at all (it did not create a power of acceptance in anyone who heard it). Because no contract was created, so no contractual remedy was possible.

Mason's language was not that of a joke, but of a well-known hyperbolic device (offering a million dollars for something). However, K may have had good reason to think that M was not joking. For one thing, being a super-rich asshole lawyer with super-rich asshole murderer clients, Mason would have a million dollars to spare. Pepsi obviously did not have any Harrier jets to spare (they are protected military hardware). I would want to know whether Mason ever made similar statements on other occasions--which would suggest it was a genuine offer. I would want to know if Mason ever published similar terms, for example on a web site. Those actions would tend to dispel in reasonable viewers any belief that the reward offer might have been made as a hackneyed cliche and not as a serious offer.

It was much more foreseeable that Mason's words would be relied upon by persons attempting to disprove his claim, than was foreseeable that Leonard would try to buy Pepsi Points for a Harrier jet. Words that foreseeably induce reliance suggest that Mason's statements were a unilateral offer.

If it was a unilateral offer, then Kolodziej is entitled to his expectation, reliance, or unjust unrichment damages. In this case, K did not enrich Mason at all (in fact, he harmed Mason's reputation by proving him wrong, but that injury is not one recognized by the law), so unjust enrichment would net K nothing. K's out of pocket expenses actually occurred in reasonably foreseeable reliance on M's offer would probably be much less than a million dollars. K's expectation is a cool million exactly. That is the best theory of damages for K to pursue, assuming that there was a contract.

In Leonard, the plaintiff did not actually have out-of-pocket expenses (except for filing the frivolous suit, but those costs are generally not recoverable in the American system)

In this case, Kolodziej probably did incur costs while trying to demonstrate the falsity of Mr. Mason's claims (for example: plane tickets, unless he's related to someone in the airline business). Kolodziej may be entitled to a remedy in quasi-contract, an equitable doctrine. In equity, the court (not the jury) would weigh a super-rich asshole defense lawyer who made bombastic, cliched claims on national television, against an enterprising young law student who maybe should have known that it was just a bombastic cliched claim.

Kolodziej's recovery, if any, would be limited to the actual costs incurred in attempting to disprove Mason's claim, so long as they were reasonably foreseeable by Mason at the time he made the alleged offer.

It also must be said that the general rule on lawsuits brought by law students is: the law student loses. On that basis alone, I would advise K not to sue M.

Notice how much random junk I put into my answer that isn't relevant to Althouse's exact question "Was Mason's "Dateline" exclamation a rhetorical flurry or an actual offer that created an implied oral contract when Kolodziej accepted?"

LAW SCHOOL EXAM TIP 1:

You have to play it safe when you are answering a law school exam, because you never know exactly what the professor wants. The safest thing is to throw the kitchen sink at it. For example, professors will often fail to ask about remedies in their exam questions, but they ALWAYS want to see a discussion of all the possible remedies, and why they would or would not be available to the parties under certain circumstances.

Defining concepts is a great way to earn points, even though the prof never said "please define these concepts for me when you answer your question."

LAW SCHOOL EXAM TIP 2:

The best source of organization for an essay is the syllabus. I stopped making outlines. I just bring the syllabus to open-book exams. Applying that strategy, I saved sooo much time during finals month, that I was able to spend more than 8 hours a day [redacted]. That's why I started with "what is a contract" and ended with equitable remedies.

I can't tell you what the professor actually wants to see on the exam, and the professor won't tell you either with her question. The "question" isn't supposed to be answered directly, it's just a "prompt" designed to get you to vomit out lots of analysis that hits all of the issues on the prof's checklist. Vomit profusely, and unless you can see a much better order to use, vomit in the order of the syllabus.

TIP NO 3:

Avoid professors who give "theoretical" questions, like Althouse's "empathy" exam!!! Sorry Althouse, I'm sure you're a great prof, but I could never afford to take your con law class. You want to give the best grades to people who read the most and study the hardest, the lame law dorks on the law prof track, just like you were many years ago.

It's best to take classes from professors who will give traditional issue-spotting exams, because it's easier to con your way through them with the above-described methods.

TIP NO 4:

Law professors can't do arithmetic to save their lives. If they offer "extra credit" or points for "participation," they will say that it only has a small impact on your grade. But they don't have a clue, because they can't do math. These things can mean the difference between an "A" and a "C," if you have an especially clueless prof. Try to calculate for yourself whether it's worthwhile to do the extra credit.

Oftentimes, you can't calculate it because the prof won't give you sufficient information. In that case, assume that it will radically affect your grade, and fear it appropriately.

The "under 28-minutes" part of the trip was just from the Atlanta airport to the Atlanta hotel -- not from Orlando to the Atlanta hotel. Nevertheless, that's the timing that Mason claimed was impossible to duplicate.

The (former) law student has a serious and well-credentialed lawyer representing him. The case is pending as No. 4:09-cv-01889 in the U.S. District Court for the Southern District of Texas, Houston Division (Hon. Gray H. Miller), but Mason hasn't yet filed an appearance or answer.

Carbolic Smoke Ball is indeed the applicable starting-place for contractual analysis even today, but it's far from dispositive (there are more serious "consideration" issues here). In this case, the analysis is going to be delayed, and perhaps complicated, by some threshold choice-of-law issues. My guess is that Florida's substantive law will end up controlling, but I don't know if that will matter to the outcome. There might also be personal jurisdiction and venue fights preliminary to any weighing of the merits.

I would be very surprised, however, if the plaintiff's counsel has not already extensively briefed all of these issues. Mason would be well advised to take the case very, very seriously.

The Judges who rule on the Unilateral contract theory will be hard put to give the offerer a pass since he was a lawyer who knew what he was saying is a valid contract open to acceptance by performance. Giving Pepsi a break is one thing. Pepsi is a commercial enterprise advertising to catch attention with a wild scenario, and everyone knows their ads are a trick anyway. But a trial lawyer trying to influence potential jurors is serious business to Judges. He wants the I was "joking" pass awarded by a court,but I doubt he will get that pass on these facts since The Contract Law Treatise and textbooks revision costs would be too great for Judges to change the law for this careless lawyers benefit. Lawyers are "officers of the court" and are held to a higher standard. He will lose.

I have to give Daryl an "A" for articulating how to write a law school exam answer. I have tried to give similar advice but have not even come close to the "vomit in the order of the syllabus" tip, which is, unfortunately, as precise an explanation of how to get a good grade as I've ever read.

Reminds me of Lord Peter Wimsey in Dorothy L. Sayers' Five Red Herrings, where Wimsey needs to prove that the perpetrator can get from where the body was left and the evidence was planted to a particular train station within a certain period of time.

Looking at the complaint itself, the word "challenge" is repeatedly used by the plaintiff to describe Mason's statement. A challenge, in typical usage, would mean something other than unilateral performance, i.e., one would expect the challengee to accept by words before performing.

Looking at the tape and transcript themselves, there is a HUGE ambiguity, in that Mason's statement at issue is isolated, that is, cut off from the rest of the interview.

Murphy (showing hotel footage): And the last part of the timeline, the defense argued was even more implausible. In less than half an hour, Serrano would have had to get off a wide body jet, exit Atlanta airport—one of the busiest in the world—and arrive back at his hotel five miles away. All in time to be photographed looking up at that surveillance camera.Mason (cut back to interview): I challenge anybody to show me, I’ll pay them a million dollars if they can do it.Murphy: If they can do it in the time alloted?

The challenge/"offer" is taken out of its original context, such that it is uncertain what the "it" is. That is, the terms of the challenge are not so certain as to be the basis of a contractual offer -- what is the "it" to be performed? And nowhere is unilateral acceptance by performance implied.

Moreover, Mason did NOT make this challenge/"offer" to the world, much less to the plaintiff. Rather, he made it to a single reporter and his camera crew. It was NBC that conveyed Mason's statement to the world in airing the interview, not Mason himself.

The script of Smokey and the Bandit was a similar challenge and Burt Reynolds won it fair and square. To speak in an interview with an NBC reporter on camera and promise to pay $$ to anyone that can do an act will not be confusing to a Judge. That is an offer open to acceptance by performance. Blowing smoke by the losing party and his empathisers cannot change the facts and the law. Exaggerating is mere everyday lying. But promising a reward during the exaggerating is enforceable by courts.

Mason did NOT make this challenge/"offer" to the world, much less to the plaintiff. Rather, he made it to a single reporter and his camera crew. It was NBC that conveyed Mason's statement to the world in airing the interview, not Mason himself.

The argument is that a high rolling trial lawyer doesn't realize that speaking in front of a network news camera will ensure the widest possible dissemination of his offer?

No consideration, kids, and thus no contract. Promissory estoppel yes, but alas much smaller damages.

1 - The consideration is, on one side, $1M, and on the other side, meeting the challenge (it was necessary for Kolodziej to meet the challenge in order to accept the unilateral offer). Thus consideration exists.

2 - Promissory Estoppel is not the proper doctrine, per #1, but even if it was, PE does not compel that damages be limited to reliance. PE says that damages should be limited judicially based on what's "fair." That could mean anything from $0 to $1M.

There's not "no consideration," but there's a legitimate question as to whether it's adequate, given that it's indirect. The benefits to the parties don't have to be exactly reciprocal or of comparable value for consideration to be considered real and, oftentimes, sufficient.

The makers of the Carbolic Smoke Ball got the purchase price -- not only of the plaintiff, but of all the other people who were influenced by their public guarantee.

Nothing went directly from the law student to Mason or Mason's client, but Mason's client potentially benefitted indirectly from the making of the statement and the perception that the challenge couldn't be met.

I would not be surprised to find that Mason repeated something very like this assertion of impossibility in briefs and/or oral arguments. As long as such a public statement is not publicly refuted, it arguably has value to Mason's client in his efforts to overturn his conviction.

And without regard to the specific fate of Mason's client, Mason himself -- who, after all, is being sued as a principal, not an agent -- benefits from public perceptions that he's a persuasive, articulate, hard-nosed fact-capable advocate. The viewers of this TV show aren't limited to, or even mostly on, appellate courts, and Mason would be a liar if he claims that no part of his motivation in permitting the interview was personal and entrepreneurial for purposes of his law practice.

With due respect to everyone offering hip-shot opinions here -- and mine, admittedly, is no more than that -- unless and until someone has dug into the relevant precedents from the specific state jurisdiction which will control (and it's far from clear which state's substantive contract law will apply), our hip-shot opinions all fall into the category of "wild-ass guesses" rather than "educated guesses." I think it's likely that the case will be resolved on summary judgment after a little bit of discovery clarifies the underlying facts. But I doubt it'll get bounced on a 12(b)(6) motion to dismiss unless there's a state-court precedent so obviously on point both factually and legally, but which nobody here has cited yet, that is (to use the colloquial phrase popular among Texas trial lawyers, but which has no connection to the Carbolic Smoke Ball case) "stronger'n train smoke."

The question here isn't consideration. It's whether Mason's remarks constituted an offer. If they did, then it was an offer looking to unilateral contract which Kolodziej could accept by performance. The promise to pay was consideration for Kolodziej's performance, which was in turn consideration for the promise.

An offer is sufficient if the offeror manifests an intent to be bound, if the offer contains all the material terms, and if it's communicated to the offeree. These particular statements were made publicly and Kolodziej evidently received them, so communication isn't an issue. The statements contain all the material terms of the arrangement: $1m in return for demonstrating that one can fly from Orlando to Atlanta, exit the airport, and arrive at a nearby hotel in less than half an hour. So the only issue is whether Mason manifested an intent to be bound.

The offeror's intent is measured according to how it would have appeared to a reasonable person -- the so-called objective theory of contracts. Here, arguably, a reasonable person might have understood Mason as simply stressing the implausibility of the prosecution's timeline. On the other hand, the language Mason used ("I challenge" and "I'll pay") certainly could be reasonably interpreted as promissory in nature.

The article is incorrect. The 28 minutes was from the Atlanta airport to the hotel five miles away.

The problem with the defense theory is that they assume that the time Serrano was video taped in Atlanta was a limiting factor. It wasn't, it was just the time he actually arrived.

In other words, the defense argued that all these coincidences would have to happen between two set times, completely ignoring that the times were simply set by Serrano. (In other words, Serrano didn't HAVE to do the crime in the time alloted, it just happens to be the time he DID commit it.)

The question here isn't consideration. It's whether Mason's remarks constituted an offer. If they did, then it was an offer looking to unilateral contract which Kolodziej could accept by performance. The promise to pay was consideration for Kolodziej's performance, which was in turn consideration for the promise.

I agree the case hinges on intent. Mason may argue that refuting his assertion harmed his defense case, which no reasonable attorney would pay even one dollar to have happen. (Courts generally avoid judging the adequacy of consideration, but the amount goes to the reasonableness of the purported offer.) Thus his challenge was more like a bet than it was an offer. And courts should not enforce bets as a matter of public policy against gambling. So even if Mason had been serious about the amount, the challenge was an unenforceable bet.

Though I agree the case depends upon whether or not there is a valid offer..it is NOT a question of subjective intent (i.e. did Mason intend to create an offer). Instead it is a matter of objective intent (would a reasonable person believe Mason created an offer).

Typically, for a generalized public advertisement or reward to be considered an offer 3 things need to be present: Definiteness as to the class of persons that can accept, the manner of acceptance, definiteness as to the material terms of the deal.Here, the class of potential acceptors is definite: "anyone who could do it in under 30 minutes." Furthermore, the manner of acceptance is defined from the offer as full performance: in other words, a unilateral contract. The definiteness of the material terms IS a potential problem though. Mason's challenge is predicated on someone matching or besting the time it took Serrano to travel in the manner he did. However in describing the time it took Serrano to do the feat, Mason stated: "In less than half an hour, Serrano would have had to get off a wide body jet..." Thus, from the statement, it is unclear as to the exact amount of time it took Serrano to complete the feat and, therefore, is not definite as to the time limit afforded for performance (a material term).

Finally, I think Leonard v. Pepsico can be distinguished. In Leonard, the Pepsi offer for the Harrier was in a catalogue with many other offers: shirts, towels, etc. Thus, given the attendant circumstances of the Harrier offer it was possible to assume a reasonable person could not have believed it to be a valid offer. Here, there is no other offer to bound Mason's offer of one million dollars for the challenge. Given these circumstances, it seem that a reasonable person would have no choice but to conclude that it was an offer.

"It cannot be a bilateral contract, because Kolodziej never made words of acceptance to Mason. Further, because Mason framed his offer in the language of a "reward," it looks very much like a unilateral offer."

I'd say that's wrong. If it was a bileteral contract OFFER he got no takers and this is a non-issue.

It doesn't automatically become an unileteral offer just because it failed to become a bilateral contract.

Here, the class of potential acceptors is definite: "anyone who could do it in under 30 minutes." Furthermore, the manner of acceptance is defined from the offer as full performance: in other words, a unilateral contract.

The use of "anyone" distinguishes the case from the familiar unilateral ones. Only one of the prospective dog finders, house painters, one-only-at-this-price shoppers, etc., can accept offers by performance. To interpret Mason's words as an offer, one must allow it to be accepted by performance again and again, at least till it could be considered to be expired by lapse of time. Reading it to mean "the first" anybody who shows him is not required. Would an objective observer consider that Mason wanted to pay out tens or hundreds of millions of dollars to be proven wrong?

Former Law Student: I agree the case hinges on intent. Mason may argue that refuting his assertion harmed his defense case, which no reasonable attorney would pay even one dollar to have happen. (Courts generally avoid judging the adequacy of consideration, but the amount goes to the reasonableness of the purported offer.) Thus his challenge was more like a bet than it was an offer. And courts should not enforce bets as a matter of public policy against gambling. So even if Mason had been serious about the amount, the challenge was an unenforceable bet.

Wrong. When we ask whether a statement is an offer, or mere puffery, we look to the objective meaning of the words as they would be understood by the audience. A secret intent not to pay out if the conditions are met does not mean that this is not an offer.

The point of a challenge, as pointed out by Mr. Dyer, is to create the perception that something is impossible because (i) there's a lot of reward money, so people are motivated to do it, yet (ii) nonetheless, no one has done it. That is a valuable thing, worth a lot more than a peppercorn.

Former Law Student: To interpret Mason's words as an offer, one must allow it to be accepted by performance again and again, at least till it could be considered to be expired by lapse of time.

No. In fact, if you interpret it that way, then it would not be a valid offer, because it would be indefinite as to the scope of the reward.

Further, it doesn't make any sense to interpret it that way. The point of the challenge was to create the perception that this thing was IMPOSSIBLE because no one could do it (and if someone could do it, surely they would come forward and claim the million dollars). Once one person does it, it's obviously not impossible anymore. There's no point to rewarding anyone else.

I stand by my "no consideration" conclusion (although I agree that whether there was an offer is questionable as well). There was no benefit flowing to the offeror. If anything, the "performance" of making it in less than half an hour was to the detriment of the offeror.